Central Administrative Tribunal - Delhi
Dinesh Chandra Joshi vs Defence on 21 August, 2023
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Item No.47/ C-5 OA No. 1945/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1945/2022
This is the 21st Day of August, 2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Shri Dinesh Chandra Joshi (Aged about 55 years)
S/o late Shri Prem Ballab
R/o A-1/160, A-1 Block,
Madhu Vihar, Dwarka,
Sector 3, New Delhi-59
...Applicant
(By Advocate : Mr. Tarun Kumar Agarwal with Mr.
Amit Kumar Gupta)
Versus
1. Union of India
Through its Secretary,
Ministry of Defence 101-A,
South Block, New Delhi - 110011
2. Commander-in-Chief HQ Maintenance
Command Nagpur - 440007
3. Commanding Officer 31 Movement Control Unit
Air Force Station, Palam New Delhi-110010
4. Air Commanding Officer
13 Base Repair Depot Air Force,
Palam New Delhi-110010
...Respondents
(By Advocate: Mr. U. Srivastava)
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Item No.47/ C-5 OA No. 1945/2022
ORDER (ORAL)
The instant OA has been filed by the applicant under Section 19 of the Administrative Tribunals Act 1985, seeking the following reliefs:-
"(a) Direct the respondents to take a time bound decision in respect of proposal for grant of benefits of GPF and Old Pension Scheme initiated vide HQ Maintenance Command Letter No. 2020/HQMC/PC/23 dated 15th Jan., 2020 (Annex.: A-1), keeping in view the Judicial Pronouncements placed vide Annexures A-10, A- 11 & A-12 in the matter.
(b) Any other such relief as this Hon'ble Tribunal may deem fit and proper in the fact and circumstances of the case."
2. During the arguments, learned counsel for the applicant further substantiated that the applicant prays for granting benefits of GPF and Old Pension Scheme, giving the benefit of temporary status of the present applicant, which was granted to him on 01.05.1997.
3. Brief facts of the case are that the present applicant was working as Seasonal Anti-Malaria Lascar (SAML) on casual basis w.e.f. 01.05.1994. Based on the scheme of Govt. of India for temporary status, the present applicant was granted temporary status w.e.f. 01.05.1997. Subsequently, based on various judgments passed by the 3 Item No.47/ C-5 OA No. 1945/2022 Courts as well as in OA No. 190/2010, the respondents regularized the services of the applicant w.e.f. 23.11.2011. The applicant is still in service and will attained the age of superannuation in the year 2026.
4. Learned counsel for applicant referred to the communication of the respondents dated 15.01.2020 (Impugned Circular) and submits that the respondents are inviting details from the subordinate offices regarding the list of employees who were granted temporary status prior to 01.01.2004 and who were regularized on or after January 2004 under the SAML Scheme. The purpose is to extend the benefits of GPF and Old Pension Scheme those Civilian employees who were granted temporary status prior to 01.01.2004 and regularized on or after 01.01.2004.
5. Learned counsel for applicant, in support of his arguments, submits that there are catena of judgments passed by the Hon'ble Supreme Court where the period of temporary status of employee were considered for giving pensionary benefits to employees. In the instant case, he cited the judgment passed by the Hon'ble Apex Court in Prem Singh Vs. The State of UP, wherein a series of civilian employees were given benefits of temporary status 4 Item No.47/ C-5 OA No. 1945/2022 for pensionary benefits to the petitioners therein. Particularly he referred to para 33 of the said judgment, which reads as under:-
"33. As it would be unjust, illegal and impermissible to make aforesaid classification to make the Rule 3(8) valid and non discriminatory, we have to read down the provisions of Rule 3(8) and hold that services rendered even prior to regularisation in the capacity of work-charged employees, contingency paid fund employees or non- pensionable establishment shall also be counted towards the qualifying service even if such service is not preceded by temporary or regular appointment in pensionable establishment."
6. Learned counsel for applicant also referred to the judgment of High Court of Allahabad in Kamaluddin Vs. State of U.P and Another, Writ-A No. 17042/2021 decided on 08.10.2021 wherein the Hon'ble High Court of Allahabad has given benefit of temporary status for pensionary benefits. The relevant para of which reads as under:-
"The record reflects that petitioner has been engaged as daily wager Clerk on 14.06.1989. It also transpires from the record that since the date of engagement of petitioner as daily wager, he was continuously working till his services was regularised by order dated 22.09.2008, therefore, in view of the judgement of Apex Court in the case of Prem Singh (supra) as well as judgement of this Court in the case of Kaushal Kishore Chaubey (supra), the services rendered as daily wager is liable to be counted for the purpose of grant of 5 Item No.47/ C-5 OA No. 1945/2022 pensionary benefit after retirement, and if that be so, obviously the date of appointment of petitioner would be treated to be 14.06.1989. Hence, the services of the petitioner will be governed under the Old Pension Scheme as has been held by this Court in Writ-A No.55607 of 2008 which has been upheld by this Court in Special Appeal Defective No.116 of 2021."
7. He also further stated that the DOPT vide OM dated 26.02.2016 has also given the benefit of temporary service for pensionary benefits. He further cited the recent DOPT OM No. 57/05/2021-P&PW(B) dated 03.03.2023, wherein in para 4 the following has been stated.
"4. The matter has been examined in consultation with the Department of Financial Services, Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of the Courts in this regard. It has now been decided that, in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023"
8. In view of the above, the learned counsel for the applicant submits that the case of the applicant is squarely covered by the aforementioned judgments as well as the OMs referred herein above.
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Item No.47/ C-5 OA No. 1945/2022
9. Learned counsel for respondents submits that the facts mentioned by the learned counsel for the applicant as well as in the OA are admitted. The respondents are making efforts to give the benefits of Old Pension Scheme to the employees who have been appointed prior to 01.01.2004 and regularized subsequently. The matter of the present applicant will be considered along with the other employees who will fall in the same category. He further submits that in para 5 of the counter affidavit it has been mentioned that the present applicant has not exhausted all the administrative avenues before approaching this Tribunal seeking the reliefs mentioned in the OA. In view of this, he stated that the respondents would like to consider the case of the applicant along with others as per the policy and as per the initiative taken by the respondents vide impugned circular dated 15.01.2020.
9. In view of the arguments made by both the counsels and pleadings in the case, it will be appropriate to dispose of the OA at this stage with direction to the respondents to consider this OA as fresh representation of the applicant and decide the same by passing a reasoned and speaking 7 Item No.47/ C-5 OA No. 1945/2022 order thereon within a period of three months from the date of receipt of a certified copy of this order.
10. The OA is disposed of in the above terms. No costs.
(Dr. Chhabilendra Roul) Member (A) /daya/